*1 429 Applying principles, these to liability part established on the of the city. Although damage present incurred case this result would city allow the to escape from the arose loose soil underneath the liability even negligence its causes where and, such, duct banks not did amount harm, that is governmental the essence of dangerous city’s to a condition “of’ the immunity as by legislative established (b)(5) system for purposes of the sewer government. our branch circumstance, moreover, This exception. Accordingly, I would affirm the order distinguishes the present case from the n the Commonwealth Court. by Allegheny situation Gall Gall v. 68, Department, County Health 521 Pa. (1989), major- 786 which the
ity support. Majority Opinion, draws See Gall, In danger
at 424-25. stemmed
from contaminated water delivered authority’s plaintiffs
water
facilities. The
Megan
alleged that
the contamination
L. SHINAL
arose be-
and Robert
husband,
cause the authority
Shinal,
had
al-
J.
her
negligently
retaining
Appellants
systems
lowed water
and water
piping
parasite.
to become
infested with
v.
Gall,
70,
thority had failed utilize scientific No. 31 MAP 2016 developments water; to treat and cure the (b) properly filter flowing the water Supreme Court of Pennsylvania. line; (c) through frequent take 2, ARGUED: November 2016 necessary samples water determine 20, DECIDED: June 2017 para- the existence non-existence It is apparent site. See id. thus
Gall, plaintiffs’ allegations' related
aspects utility system “of’ the much more
so present than in the matter. brief, I Appellant’s conclude that in- not have its the city’s did source Thus, facility any negligence
sewer itself. city’s
associated with the failure shoré
up the soil notice that conduit danger give
banks
should
rise
see,
question
realty
facility
in-
dangerous,
e.g.,
owned
must
itself be the
is not
Warden
Jones,
226,
L.A.,
297,
injury.
City
Cal.Rptr.
source of the
Solomon Scott Loder, Esq., David Duane Esq., Edwin LLP, Hospital for Morris The & Health- system Pennsylvania, Ami- Association cus Curiae. Hoffman, Esq., B. Eckert Sea-
Robert Mellott, LLC, Ameri- mans Cherin & for can Medical Association & PA Medical Society, Amicus Curiae. Mazzarella, Esq., Ann Peter
Kristin Olszewski, Scartelli, Esq., A. Paul Melissa Olszewski, P.C., Esq., Michael J. Scartelli Robert, Shinal, Kenny, Esq., Megan for & Appellant.
Audrey Copeland, Esq., flagship Jacobsen hospital Geisinger Ste- Medical Cen- ter, phen Ryan, Esq., Wilson, Danville, A. Lynn Michelle located County. Montour Marshall, Esq., Warner, Dennehey, Clinic, Geisinger Cole- also part of Geisinger P.C., Toms, man & A., Goggin, System, Steven Health is the entity business em- Appellee. ploying physicians within Geisinger Health System. Geisinger System Health and its SAYLOR, C.J., BAER, TODD, business 12,- related entities employ about DONOHUE, DOUGHERTY, WECHT, 000 people, making it largest employer MUNDY, JJ. -County. Montour Reproduced Record (R.R.) Toms, M.D., Steven 208a. A. is the Justice Opinion Wecht delivers the Director Department of Neurosur- the Court. Justices Donohue and gery at Geisinger Center, Medical and is join opinion Dougherty full. Justice employed by Geisinger Clinic as a neuro- joins Todd except respect the opinion, surgeon. 11(A)(2). to Part Mundy joins Justice Part
11(A)of the opinion full. 26, 2007, On November Megan L. Shinal Toms twenty-minute met
OPINION initial consultation discuss removing non-malignant recurrent tumor from the *5 JUSTICE WECHT pituitary region of’ Mrs. Shinal’s brain. - In malpractice this prem- medical action earlier, surgeon Years operated to ex- consent, ised lack upon of informed we tract by accessing the tumor it through the address whether the trial court erred in nose, but was unable to all of remove it. refusing prospective strike for portion residual of the tumor re- relationships cause based their to the mained and increased size until it ex- through case them im- employer brain, tended into vital structures of the family mediate member’s employer. We jeopardizing Mrs. Shinal’s eyesight and conclude that the trial court did not err in headaches, her artery, causing carotid and However, regard. conclude further this we threatening to impact pitui- Mrs. Shinal’s the trial court that an error of committed tary and hormone function. If left untreat- law when instructed the consider ed,' tumor eventually would become provided by information the defendant sur- life-threatening. geon’s qualified deciding staff the merits Toms’, According to subsequent Dr. of the informed consent claim. Because a testimony, meeting November physician’s duty provide information to goals entailed discussion of Mrs. Shinal’s patient sufficient to obtain her informed expectations in and life risks of and the non-delegable, consent is we reverse the approaches different surgery, including Superior affirming judg- Court’s order possible damage nearby carotid ar- defendant, ment entered favor tery optic and the nerve. In Dr. Toms’ for a we remand new trial. recollection, Mrs. Shinal stated she Background I. child, (cid:127)wanted to “be there” her who Geisinger System, Health pri- years situated was then nine old. 503a. Dr. R.R. marily in County, large, Montour is a inte- Toms Mrs. understood Shinal to mean grated of, inter system comprised health “she to push wanted me if I got forward alia, hospitals, physician thought 'medical I groups, situation where I could [re- clinics, centers, surgical insur- move all of the tumor] and health with a reasonable provider. Geisinger System’s ance Health R.R. risk.” 503a. Toms testified that he Neurosurgery Clinic. The alternatives, Center’s Medical Mrs. Shinal
reviewed with Mrs. risks, obtained Shinal’s physician total versus subtotal assistant benefits of his resection, physical, Mrs. Shinal history, shared with conducted medical that, aggressive a less re- although with information opinion provided Mrs. Shinal tumor safer removing signed was approach surgery. Shinal lating to the Mrs. term, would approach such an in the short form.1 informed consent an the tumor increase the likelihood trial, unable to recall At Shinal was Mrs. Although he unable grow back. was would relative risks being informed of the specifics about many to recall Mrs. than coma and other death. surgery, Shinal, Dr. Toms conversation with Mrs. that, had she known Shinal testified that he advised Mrs. Shinal testified ie., surgery, to- approaches alternative highest offered the surgical total resection resection, she would versus subtotal tal R.R. 503- long-term survival. chance as the saf- resection have chosen subtotal visit, Mrs. Shinal By the end of the 510a. er, aggressive less alternative. However, surgery. undergo had decided 31, 2008, Shinal under- January Mrs. On yet surgical approach had not been open craniotomy total resection went R.R. determined. 513a. Cen- Geisinger Medical the brain tumor thereafter, on December Shortly perfo- operation, Dr. Toms During ter. telephone conver- Mrs. Shinal had artery, carotid rated Mrs. Shinal’s assistant. physician Dr. Toms’ sation with stroke, inju- brain hemorrhage, resulted in asked that she Mrs. later testified Shinal partial blindness. ry, and scarring about assistant 17, 2009, Mrs. Shinal and On December surgery, likely result husband, (collectively J. her Robert Shinal necessary, about radiation would be Shinals”), mal- “the initiated medical rec- surgery. The medical the date *6 of Common action in the Court practice call that Dr. telephone ord of this indicated alleging Dr. County, Pleas of Montour physician Toms’ assistant also answered in- Toms obtain Mrs. Shinal’s craniotomy failed to questions incision. about 31, January 2008, for the 17, consent January Mrs. Shinal met with formed On com- Geisinger According to the surgery.2 Shinals’ physician assistant Availability Reduc- acknowledged The Care and that Mrs. Shinal Medical 1. This form (MCARE) of defines informed tion Error Act gave perform "a re- permission Dr. Toms to consent as follows: craniopharyngioma,” and of section recurrent (a) Duty physicians.—Except in emer- of including surgery identified the risks of duty pa- gencies, physician to a owes a infection, breathing scarring, bleeding, "pain, informed consent of the tient obtain the attack, stroke, injury problems, and heart represen- patient patient's or the authorized repre- Op. The form also death.” Tr. Ct. at 4. following pro- conducting prior to tative sented that Mrs. Shinal had discussed cedures: "advantages disadvantages of alternative and (1) including Performing surgery, treatments," fully form has been “[t]his related of anesthesia. administration me,” explained Mrs. under- Shinal contents, that Mrs. Shinal the form’s stood (b) Description procedure.—Consent is questions, opportunity ask and that had the given patient has been informed if the give Shinal had information to Mrs. sufficient description procedure in sub- of a set forth operation. The her informed consent Id. (a) and alternatives section and risks specific purport to address the form did not patient reasonably prudent risks of total versus subtotal resection. require decision as to make an informed procedure. physician shall be enti- The description present tled to evidence explain Dr. Toms plaint, failed the risks 569 Pa. 805 A.2d or surgery Mrs. Shinal to offer her (holding that a facility medical lacks con- surgical the lower risk alternative of subto- trol over in the manner which a tumor, benign tal resection of the followed performs duty to obtain informed his/her by initially The Shinals radiation. named consent, cannot vicariously liable Center, Geisinger as defendants Medical duty). breach of that Clinic, Geisinger Dr. par- Toms. The 8, 2014, April On the trial court amend agreed ties to bifurcate the of liabili- issues prior 12, 2013, ed its of February order ty damages. liability phase attempt an to comply plurali with the two solely towas address issue ty opinions of an intervening Superior Toms obtained Mrs. Shinal’s Court decision. See Cordes v. Assoc. surgery informed consent before Medicine, Internal 843-45 selection, to jury Prior the Shinals (Pa. 2014) Super. (Opinion in Support of potential jurors moved to strike all who (“OISR”) Wecht, J.) by Reversal (requir employed by, were either insured alia, ing, inter the exclusion of prospec family employed who had or in- members juror upon presumption tive based by, any Geisinger entity. sured On Febru- prejudice arising juror’s from the employ 12, 2013, ary granted part the trial court parent company ment of a named motion, part denied Shinals’ defendant); corporate (OISR id. at 869-70 directing prospective jurors who were J.) Donohue, alia, (requiring, inter employed by named Geisinger defendants prospective of a exclusion based Clinic, Geisinger Medical Center or who upon juror’s perception the financial family had members residing the same impact the verdict could have on his em employed, house who were so would be ployer, parent company of a stricken for named cause. The trial immedi- defendant). ately attempted However, The Shinals jury. select invoked Cordes prospective jurors disqualification after numerous and moved for the disqualified, the court of any juror employed by any aborted the selec- cause Geis- process tion postponed the trial. The inger entity. The trial court denied venue, change Shinals moved for motion, concluding that Cordes did not re which the trial court denied. quire per disqualification se based *7 employment non-party with a relationship 28, 2013, May granted
On the trial court Rather, Geisinger entity. the trial court partial summary motion for judgment inquire “pro undertook into to whether Geisinger favor Medical Center and spective jurors family or their close mem Clinic, Geisinger duty because the to ob- bers have a close financial or situational tain Mrs. Shinal’s informed consent be- may longed Toms, give to to an solely Dr. not to Dr. rise employer employer’s appearance prospect partiality Toms’ or the or or agents. Ctr., bias,” See Valles Albert Einstein Med. and stated that it “consider would procedure proves receiving patient that and those risks and alter- that infor- such physician acting natives that a in accor- mation would have been a substantial accepted dance with medical standards of patient’s factor in the decision whether to practice provide. medical undergo procedure set forth in subsec- (a). tion (d) Liability,— § 40 Pa.C.S. 1303.504. (1) A is liable for failure to only obtain the informed consent if the jurors indi- prospective All of the prospective ju- four disqualify such whether they fair they would be cated that believed R.R. 178a. on an individual basis. rors” personally they not impartial, did that 15,2014, began trial court April On Toms, Toms that Dr. did know Dr. trial jury The attempt at second selection. family or medically them their close treat each had parties court informed members, they believe and that did on main strikes to use peremptory four Dr. Toms would against that a verdict for alternate one to use jury panel and employer negatively impact their 8, 2014 April its In accord with jurors. employer. family close member’s order, conducted individ- trial court an motion court the Shinals’ therefore denied jurors, prospective inquiry all ualized prospective jurors for these dismiss close juror asking whether his/her cause, relationships pre- finding (1) knew, or been family had members more attenuated than those sented were Toms; (2) of, employed Dr. patients Cordes, jurors’ assur- issue (3) if employed by a Geisinger entity; by a fit rendered them to impartiality ances entity, prospective Geisinger whether Accordingly, the Shinals jury. serve on the same juror entity be the perceived that peremptory three of their four exercised Toms; and, so, Dr. if employing entity Woll, Ackley, challenges to excuse juror perceived prospective whether jury panel,3 main Schiffino against verdict Toms would peremptory challenge their sole exercised impact upon that adverse financial have an Nagle. on for the alternate asked entity. The tidal court also Geisinger evidence, presentation Following render he she could each whether jury court the trial instructed verdict. impartial a fair and regard duty to obtain in- to Dr. Toms’ fol- from Mrs. formed consent Shinal as dire, During the Shinals moved voir considering whether “[I]n [Dr. lows: jurors for following prospective strike the Shinal], provided [Mrs. consent Toms] cause, asserting or their immedi- any relevant you may consider information or situ- family close financial ate member’s you [Mrs. find communicated Shi- was relationships the court ational should cause an any person acting as qualified nal] Woll, prejudice; M. presume Linda Dur- assistant to R.R. 673a. [Dr. Toms].” Schiffino, Denny Ackley, A. and W. Louise comí; deliberations, ing jury asked juror. Stephen Nagle, an Woll alternate conveyed by physi- information secretary ‘at the was an administrative con- satisfy cian could informed assistants Ackley’s Geisinger sleep labs. wife worked response, the trial requirements. sent years administrative thirty-five prior its essentially repeated instruc- for a pediatrics department in a assistant tion. R.R. 693a. Geisinger entity. a customer was Schiffino Geisinger representative On returned April service *8 1,May Toms. On Nagle physician was a in favor of Dr. Health Plan. retired verdict post-trial re- moved for previously assistant had the Shinals who worked lief, that are entity, asserting in Dr. Toms’ claims error Geisinger but never two First, appeal. the Shinals Additionally, relevant to this department. Nagle’s son in fail- the trial court erred security officer for a asserted that night worked as a Woll, Ackley, ing to for cause Schif- Geisinger entity. strike consul- re- tive who worked as healthcare Additionally, their sole 3. the Shinals used challenge prospec- maining on a tant. peremptory familial, fino, Nagle employ- relationship, financial, close and because their or sit ment, employment family uational, parties, of close counsel, with the victims Second, members, Geisinger entity. with a (Pa. witnesses.” Su argued that trial court 2001). the Shinals the per. Engaging in independent jury in its informed consent instruc- record, erred review of the the Superior Court the asserted Specifically, tions. Shinals challenged found that none the prospec court improperly that the trial instructed jurors tive such a had close relationship jury jury any that the could consider Rather, litigants. with the the Shinals information to communicated relevant premised assertion of prejudice upon their by any qualified acting person Mrs. Shinal situational relationships with Toms’ to Dr. The trial as an assistant Toms. employer, non-party. Superior The Court post-trial court relief. denied expand range declined to of disqualify ing relationships beyond recognized those appealed Superior to The Shinals McHugh.4 Court, Superior which affirmed. The Court trial court first addressed whether Superior rejected The Court also Woll, stricken Ackley, should have Schiffi- that, they Shinals’ because assertion no, Nagle According to the and cause. to peremptory forced exhaust their chal- Shinals, pre- the trial court should lenges, they were unable to remove seated pro- upon based four prejudice sumed jurors to the Shinals whom believed spective jurors’ financial and situational of Dr. biased favor Toms due to their relationships Geisinger with entities. relationships Geising- own situational with argument their support of of trial Court, According Superior. er. to the error,- Shinals asserted argument failing Shinals this by waived prospec- failure to excuse the four court’s timely, specific objection make a for cause jurors tive forced the Shinals perempto- trial court too had few peremptory their exercise exhaust ry by challenges, failing request jurors, leaving on those them challenges additional Su- peremptory The challenges. to strike other unable whom .acknowledged perior Court that the Shi- might be biased favor Shinals believed objection pretrial nals in their raised this of Dr. Toms. strike, Geisinger at a time motion when argu rejected Court Superior The Clinic Geisinger Center Medical Superior Court ment. The observed However, the Superior were defendants. argument premised upon the Shinals’ was Court held that Shinals nevertheless Cordes, that the trial court endeavored failing waived this claim to renew comply during jury Cordes selec following motion strike the dismissal of However, Court.; Superior tion. held Geisinger entities. be binding precedent that Cordes was Superior rejected Court further opinion The garnered majority no cause argument the trial court’s Instead, Shinals’ Superi- in that the court case. charge, permitted consent which & informed upon McHugh relied Proctor Court Co., information provided to consider Paper Products estab Gamble the trial Dr. Toms’ assistant' Mrs. presume lished that court should Shinal, prejudicial. “a a likelihood based was erroneous prejudice dissented, Judge support Lazarus for the reasons of reversal Cordes. *9 expressed plurality opinions the two 438 135, Phila., 619 Pa. 58 prior Hosp. City of its upon relied two
Superior Court of of 102, (2012); v. Pa. see Colosimo 109 communi- A.3d that information opine cases to 1206, 155, Co., 1209 Pa. 518 A.2d Elec. 513 obtaining purposes of patient to a cated (1986). impartiality protect We conveyed by a may be consent informed vetting po process, dire through the voir acting the at- under qualified professional or relation jurors to discern bias tential supervision.5 tending doctor’s lawyers, or matters ships parties, to the Discussion II. 110; Bruckshaw, 58 A.3d involved. Challenge For Cause A. Juror Marrero, 596, 546 Pa. v. Commonwealth (“The (1996) 1102, purpose A.2d 1107 687 is whether the first before us issue of empaneling of voir dire is ensure the to strike for cause Shinals were entitled jury capable of follow impartial fair familial, situation- prospective with court.”); of instructions ing the al, relationships financial 1209; see Colosimo, A.2d at Pa.R.C.P. 518 direct or indi- employer, Toms’ to voir dire and the (pertaining 220.1-221 rect, tortious allegedly when Dr. Toms’ challenges). Important peremptory of use of in the course his em- conduct occurred simply partiality, fact of but ly, it is not First, our ployment. we define relevant bias, partiality of appearance also the Then, apply of we standard review. must consider. See the trial court presented. to the facts standard Stewart, 50, 295 449 Pa. v. Commonwealth 1. Standard Review 303, In re (quoting Mur 306 A.2d Shinals, of a 136, 623, the denial According chison, 133, 99 349 U.S. 75 S.Ct. upon ju challenge premised (1955) (“[0]ur for-cause of law has system 942 L.Ed. familial, financial, or situational ror’s close prevent even the always endeavored counsel, parties, vic unfairness.”)).6 with the probability law, tims, witnesses, question raises a are essential means Challenges cause is de as to our standard review which re- jury by which obtain all plenary. scope novo our review unbiased, fi’om free spects impartial, 270, Dr. Toms dif McHugh, A.2d at 776 judging case prejudice, capable fers, of a asserting disqualification presented facts solely upon the based for the trial for cause is a decision trial of Aaron At the governing law. court, absent a will not be reversed Burr, ex- John Marshall Chief Justice palpable of discretion. Common abuse plained principle: 430, 291, Briggs, Pa. 12 wealth v. 608 A.3d Why is it that the most distant relative (2011); Stevens, v. 332-33 Commonwealth jury? party of a cannot serve 171, 507, (1999). 521 569 A.2d Pa. 739 of re- Certainly single circumstance itself, unconnected lationship, taken of the most essential ele “One no consequences, im would furnish trial is an with its jury of a successful ments is, objection. The real reason the rule v. partial jury.” Bruckshaw Frankford tiality.”); Hufnagle & Canal Hosp., v. Del. Hudson Foflygen Allegheny General 723 5. See (Pa. 1999); 205, (1910) ("[N]o Myers, Co., 476, Super. Bulman v. A.2d 705 76 A. Pa. (1983). Pa.Super. person permitted to serve on a should be party any stands in relation to a who Co., 255 v. Wilkes-Barre 6. Accord Seeherman carry prima with it cause that would facie (1916) ("It certainly [is] Pa. 99 A. (in- suspicion of favor....” evident marks of be tried desirable that cause should omitted)). quotation marks ternal suspicion par- persons free even
439 suspects Gann, the law mings 484, (1866)(“All relative of v. 52 Pa. 487 partiality; suspects his mind to be be, under the authorities seem to that where the bias, prevent will fairly which hear- objection is not on account of relationship, ing fairly deciding on testimony to require it to be ground shown as a may which be offered him. The end principal challenge propter affectum, as impartial be obtained is an jury; to se- party juror, between the the for- end, prohibited cure this a man is from mer position holds a might which he serving on it whose connexion with a latter.”).8 exercise a control over the As such party is as to induce a suspicion this explained long Court ago: partiality. relationship may The be re- law, case, in every is scrupulous mote; person may never have seen prevent even possibility of undue party; may he declare that he feels bias; it a juror does deal with prejudice case; no yet the law witness; him, with a admit though it cautiously him incapacitates from serv- him; slightest ground doubts ing jury on the suspects prej- because it prejudice is prejudice sufficient. The it- udice, general because in persons in a out; self probabil- need be made similar prejudice. situation would feel ity related, it is enough. though One Burr, 49, United v. 25 States Fed. 50 Cas. by marriage only, remotely as the (C.C. 1807). D.Va. ninth degree, to the defendant or the law, At challenges common for-cause prosecutor, may challenged be off the into “Propter were divided four classes: one, who, Any for that in any cause. respectmn, honoris respect out of of rank possible way, no honestly, matter how honor; propter defectum, on account of warped by any has been preconceived defect; delictum, propter some on account opinion may verdict, affect his crime; propter affectum, on account up has made his mind what verdict he is prejudice.” of affection or Butler v. it, give, is and declared excluded. Co., 203, Greensboro Fire Ins. 196 N.C. Nothing in the law can be well more 3, added).7 (emphasis 145 4 S.E. right extensive than of challenge Challenges propter operated to affectum propter affectum. seating bar juror employed by Lesher, 2776, at 1827WL *2.9 party litigation appear due of partiality arising matter, ance party’s general As a the test for potential control juror. over the Cum- determining See a prospective Forster, Harrisburg 7. See also pal challenge Bank v. where such the cause as- 3578, 1839) (Pa. (identifying WL signed at *3 prima with carries it evident facie favour; four common-law classes of suspicion for-cause chal- marks of either of malice or Lesher, lenges); servant, party’s Commonwealth 1827 WL he as that is the coun- master 2776, (Pa. 1827) (same). sellor, at *1 attorney.” (quoting steward or Sir Wil- Blackstone, 363)). liam 3 Comm. Bank, 3578, Harrisburg 8. See also 1839 WL (“A Polichemi, juror ought any *3 not to stand in relation 9.See also In United States v. (7th 2000) ("From party, arising either from contract or F.3d Cir. otherwise, carry prima that would present, time the federal courts have favor.”); suspicion among supporting evident marks of included the reasons facie Co., Hufnagle challenge v. Del. & Canal presumptive Hudson for cause the kinds of (Pa. 1902) ("Jurors WL *1at Com. Pl. sources bias to which the Chief Justice Burr']."); may challenged propter affectum, Torres, suspi- for [in referred United States v. (2d 1997) partiality. may (recognizing cion of bias or This be either a 128 F.3d Cir. principal challenge princi- grounds challenges or to the possible favour. A three *11 440 “when lenge for cause two scenarios: willing or she is he
disqualified is “whether a close rela- juror has such any prospective the influence of to able eliminate situational, familial, according financial, to a verdict or scruples tionship, render evidence, counsel, victims, is to be or parties, and this determined wit- questions to of answers or, juror on the basis alternatively, when nesses” Colson, v. 507 Commonwealth prejudice demeanor.” of a likelihood “demonstrates (Pa. 1985).10 811, 440, The 490 A.2d 818 Pa. ques- to his or her conduct answers whether judge must determine 873; see Bridges, A.2d at Wil- tions.” 757 any or put to aside biases juror is able Colson, 299; son, 490 A.2d at A.2d at 672 instruction from proper prejudices upon (818. Bridges, v. 563 court. Commonwealth (2001); Colson, 1, 859, A.2d 873
Pa.
757
juror
challenge
prospective
A
of a
Drew,
818;
v.
Commonwealth
490 A.2d at
either
may
invoke bias that
is
cause
(1983).
585,
500 Pa.
459
318
A.2d
presumed
Implied
or actual.
bias is
implied
special
upon
a matter of
based
as
law
Generally,
on
“[t]he decision wheth
circumstances,
attributable
law
and “is
disqualify
to
is within
er
discretion
regardless of actu
prospective juror
and will
be reversed
the trial court
Wood, 299
v.
partiality.”
al
United States
palpable
of a
abuse
discre
the absence
123,
177,
134, 57 S.Ct.
We
Johnson,
172,
Pa.Super.
v.
299
a trial monwealth
Court’s distinction. Our review of
509,
(1982)).14
512
disqualify juror
445 A.2d
We defer to
court’s decision to
based
Jones,
prejudice
Bias or
is such an
condi-
See
v.
477 Pa.
elusive
also Commonwealth
164,
874,
(1978)
difficult,
(holding
A.2d
383
877
if
tion of the
that it is most
mind
relationship”
who
police officer
has a “real
always
impossible,
recognize
its exis-
a criminal case must be excluded from serv-
tence,
might
exist in the mind
one
and
ing
probability
on the
because
(on
with one
account
his relations
Stewart,
result);
prejudice will
295 A.2d at
quite positive
parties)
he had
who was
prejudice for the
("presuming
306
sake
bias,
perfectly
no
that he was
able
and said
prospective juror
fairness” where
insured
wholly
question
to decide the
uninfluenced
victim).
father of
was the
by anything but
the evidence.
law
that,
regard
wisely says
therefore most
with
Colon, 223
14. See
Pa.Su
Commonwealth v.
may
to some of the
exist
relations which
326,
(1972);
202,
per.
299 A.2d
328
Common
parties,
between the
one of
434,
77,
Gelfi, 282 Pa.
128 A.
wealth v.
79
implied,
bias is
actual
(1928) (when
and evidence of its
challenge is based
a for-cause
given.
demeanor,
existence
juror's
need not
answers
183,
States,
196,
"[n]othing
palpable
v.
212 U.S.
of discre
United
short of a
abuse
Crawford
reversal”).
(1909).
justifies
29 S.Ct.
L.Ed.
tion
Hence,
pre-
the context
weight.
even
or she that
it is he
because
judge
trial
trial court retains
prejudice,
sumed
hears the
conduct
juror’s
observes
rele-
explore
and assess the
discretion
juror’s answers:
See, e.g.,
relationship presented.
vant
trial
juror appears
[the
before
[T]he
Dunn,
Pa.Super.
Schwarzbach
him
hears what
judge, who] sees
(granting
new
said;
opinion as
to form his
is able
unexplained
juror’s
due to a
wife’s
juror’s conduct
proposed
much from the
be-
with counsel
employment
utters,
which he
as from the words
explore
the trial
did
cause
Hesitation, doubt,
record.
printed
questioning).
relationship through
an unsettled
indicating
and nervousness
matters,
mind,
other
with-
frame
stan-
the relevant
Having established
*13
hearing, but
view and
judge’s
in the
review,
proceed now to consid-
we
dard
in the
place
to
impossible
it is
which
light
in
of our
arguments
parties’
er the
it is not
record,
As
must be considered.
presented.
the facts
precedents and
to our
bring these matters
possible to
Analysis
2.
attention,
view
judge’s
the trial
should
determining
weight
given great
the trial
resolve whether
We must
him.
before
matters
partic
that the
determining
court erred
A. at
Gelfi, 128
relationships
this case
implicated
ular
observed,
presump
to require
were not
close as
Court has
so
Superior
As the
prospec
prejudice,
and
mutually exclu-
tion
whether
are not
two scenarios
these
during
and answers
Johnson,
juror
jurors’
A
tive
at 512.
conduct
sive.
The
partiality.15
an ina-
dire revealed their
questioning
voir
may
through
indicate
relationships
disqualifying
particu-
purportedly
bility
impartial because
to be
jurors
prospective
the four
presented
involved
relationship with someone
lar
jurors’
family
or their
of a
arose because of the
case. Id.
determination
When
present employment re
past
members’
juror’s ability
impartial depends
to be
entity
lationships
Geisinger
owned
explanations,
with a
juror’s
upon the
answers
System,
Dr.
Geisinger
where
judgment
much
Heath
the trial court’s
we afford
objection
preserved
to that deci-
Superior
Shinals
their
granted review of the
15. We also
holding
sion.
that the Shinals
Court’s alternative
object
the trial court that
required
were
to
to
Moreover,
is error for the trial court to
and,
challenges
peremptory
they had too few
party
peremptory
her
use his or
force
to
required
relatedly,
were
that the Shinals
challenges
prospective
whom the
on a
challenges.
peremptory
It
request
cause,
additional
for
should have excused
trial court
their for-
undisputed
is
that the Shinals raised
peremptory
party
those
when that
exhausts
challenges
pretrial mo-
in their initial
cause
seating
challenges prior
jury.
the
876;
pending
remained
Jones,
tion to strike. This motion
see also Common
383 A.2d at
following
Moore,
court
dismissal
before the trial
Pa.
milial, financial,
The
employ-
presumption
prejudice
of
and situational
juror
familial,
a
relationships presented
ju-
ment
arises
has
by these
when
a close
financial,
place
or situational
squarely
relationship
rors
this case
within the
with
participant
(i.e.,
litigation
first
in the
scenario
in
the
Bridges,
articulated
and
counsel, victims,
witnesses).
parties,
require
or
presumption
prejudice.
of
Ac-
Bridges,
See
757 A.2d at
knowledging that
873. The mere
Geisinger Medical Cen-
familial, financial,
existence of some
Geisinger
ter and
Clinic had been dis-
relationship
situational
case,
does
require
missed from the
argue
the Shinals
every
dismissal in
case. “A remote rela
that this is
“Geisinger”
irrelevant because
to an
tionship
party
involved
is not a ba
nominally
remained
the case. The Shi-
disqualification
sis for
a prospec
where
entity
nals assert
every
bearing
the
juror
during
tive
indicates
voir
dire
Geisinger
part
name is
of
compa-
the same
Colson,
prejudiced.”
he or she will not be
ny,
against
and that a claim
employee
an
737 A.2d
juror
that a
during
for-cause
court
trial
required
We
dis
discovered
juror
step-fa-
when
qualification
prospective
was related
co-defendant’s
through her
relationship
ther
The
has
to witnesses
a case.
husband’s
sister.
See,
Jones,
e.g.,
(holding
at
assured the
that her familial
383 A.2d
duty
police
ability
on
would not affect her
officer
active
police
impartial
juror.
same
a fair
belonging
time
trial
Perry,
paying
attorney
Pa.Su
the so-
16. Accord
who assisted
Commonwealth v.
(1995) (hold
per.
trial);
Kauhi,
990-91
general at
licitor
State
*15
failing
ing that
the trial
erred in
court
1036,
195,
(1997) (ap-
1040
Hawai’i
948 P.2d
presume prejudice
juror testified
where a
appearance
plying
impropriety”
of
"the
personal friendship with
he had a close
the
"implied
the trial
bias”
to hold that
standard
arresting
prosecuting officer
and
and no
declining
for cause a
erred
to excuse
court
veracity);
about the officer’s
doubts
Common
prosecutor currently employed in the same
Fletcher,
88,
Pa.Super.
v.
369
245
A.2d
wealth
defendant,
prosecutor trying
office of the
the
307,
(1976) (presuming prejudice
308-09
and
despite
juror’s
impartiality);
the
assertion of
finding reversible error in the trial court’s
Commonwealth,
(Ky.
robbery
v.
445
request
denied the
in our
court
Few cases
defendant’s
Commonwealth
employment
relationships
examined
juror
replace
remove the
her with
(or
members)
jurors
family
between
On
this
af-
appeal,
Court
alternate.
However,
corporate
parties.
Pennsyl
firmed, deferring to the trial court’s find-
that,
clearly
vania law
where there is
holds
juror’s relationship
ing that
with the
employment relationship
a direct
between
co-defendant was attenuated and that
juror
party
participant,
and a
juror’s'
concerns
ameliorated
prejudice
courts
presume
must
impartiality.
testimonial assertion of
“Since
juror
must be
cause.
stricken
Hufna
the trial court
in the
it'is
that was
best
206;
gle,
McHugh,
This several indirect case surgery gastroin- plastic that are more in employment relationships assistant employment medicine, by the indirect entity attenuated than for an owned testinal relationship Majors’ in connection Cordes. also Geisinger System, which Health through in his to the defendant Cordes was Clinic, employed Geisinger which owned employer, which owned one defendant additionally was connect- Nagle Toms. Dr. jurors four at issue employed another. The son, as a through secu- ed his who worked degrees today’s in case were two or three rity “Geisinger.” R.R. 309a-lla. officer by presented from the removed scenario Nagle’s worked It not clear whether son Cordes, they or their close Majors as System or directly Geisinger Heath by compa employed family members Geisinger by Geisinger entity owned company parent same nies owned of course also owned System, which Health employer. Unlike Dr. Toms’ that owned Clinic, employed Dr. Geisinger which Cordes, corporate subsidiaries none of the Toms. Sys Geisinger Health parties. Neither are familial, financial, Facially, the indirect Geisinger Clinic were trial defen tem nor presented by relationships or only Toms was the defendant. situational dants. Dr. Fur not akin to the close jurors jurors Toms. these four are of the knew Dr. None ther, during pre- developed relationships trial court we have as the which dire, jurors respec- direct past. voir none worked prejudice sumed Geisinger ly employer, Toms’ Clin Dr. Dr. Toms and relationships tive between ic, facility where Mrs. Woll, Schiffino, or at the Shinal’s Nagle, through or their Geisinger Medical surgery performed, was employer’s non-party or former current indication that any there Center. Nor was Ackley or company, or between parent Geisinger employers had a non-party wife’s or through, respectively, their Nagle litiga in the outcome financial stake compa- non-party employer’s parent son’s employed as In particular, tion. Woll was indirect, sufficiently close ny, were labs,” secretary sleep for the “an admin prejudice require presumption as to so 246a, in turn owned R.R. which was matter of law. as a System, which also Geisinger Health an indirect presents Because this case Clinic, employed Geisinger which owned relationship, it was incumbent employment through Ackley was connected Dr. Toms. engage the trial court wife, Ryan in for “Dr. who worked to reveal whether be- questioning 250a-51a, R.R. was there pediatrics,” member’s family lieved their by Geisinger entity employed fore owned employer be fi- current or former would which, again, Health by Geisinger System, by an verdict nancially harmed adverse Clinic, Geisinger em also which owned affect the relationship whether the would ployed employed Toins. was Schiffino Dr. impartial. to be jurors’ respective abilities representative for a customer service acceptance of assessing the trial court’s 271a-72a, Plan, Health Geisinger R.R. answers, juror’s apply we deferential 353a, by Geisinger which was owned of review and will reverse which, standard again, System, Health also owned of discre- Clinic, upon palpable abuse trial court Geisinger employed Koehler, A.2d at 238. Finally, juror Nagle alternate was tion. Toms. juror’s parental con- employment filial or disqualifying here whether alone, case, counsel, victims, witnesses, standing parties, see nection juror. disqualify Bridges, A.2d at do not resolve we *19 Relying upon against Donohue’s Dr. Justice OISR verdict Toms would have a Cordes, jurors negative impact court financial employer, the trial asked the on her that they they, that their and she averred be fair believed she could and impartial. Id. at members, 247a.22 family and Dr. Toms em- ployed by company, the same and whether Ackley believed that his and wife Dr. family employer they or their members’ employed by Toms were compa- the same financially litiga- by be affected would ny. 251a (“They R.R. do work the same tion. that None of the believed belief, company.”). Given this the trial against financially verdict Dr. Toms would Ackley asked whether believed that impact employer family or a mem- negative against verdict Toms Dr. would each he or employer, ber’s and stated that an adverse effect wife’s em- impartially. particular, she could act Id. ployer. Ackley initially indicated that trial court if that perceived asked Woll she Id. he Upon did not know how to answer. employed by she and Dr. Toms were inquiry, Ackley further indicated that responded same Woll that she company. no negative be there would financial im- and Dr. “don’t even pact Toms work upon his wife’s employer, that he R.R. Id. building.” same 246a. further impartial. Woll was able to be fair 251- responded that she did 52a.23 that believe sorry. point, They
22. On Woll A. I’m this answered as follows: do work for same company. Q. you you perceive Do Toms that and Dr. Q. your perception they Given that work employed by company? are the same company, you perceive for the same do that building A. I don’t work in the even same negative against verdict Dr. Toms as he does. case, do, if that what a chose to Jury Q. isWhat the answer? impact your negatively financially could building A. I in the same as he don’t work employer? wife’s does. Q. really A. know don't how to I answer your perception I know what want to question. Q. is? up me see if I Let can come Yes, big work for A. It’s a umbrella. we do negative way to ask If is a different it. there company the same but— Toms, against you Q. Dr. do believe you happened Do if verdict believe that there employer it would cost Dr. Toms’ mon- against be in this a verdict Toms ey? case, negatively financially would Well, yeah. A. your employer? affect not, Q. regard being you Do Dr. Toms as em- Probably A. Q. your ployed company the same Why? wife? malpractice I A. There is A. Yes. insurance and Q. Geisinger you it would fi- can’t see affect do think that there would be a So nothing nancially, impact ever does. Your negative financial on wife's Q. nothing why you say negative I’m do curious employer if there verdict were a impacts Why financially Geisinger. do ever against Dr. Toms in this case? you say that? say A. I no. would Q. A. had to rename would If Danville it affect? No Geisingerville, probably to 80% 60% A. No. people employed live here Q. who are impact employer? your on No wife’s Geisinger way one another. A. No. R.R. 246a-47a. Q. case, employ- given your In this wife's Geisinger, other connec- any ment at Ackley was examined follows: being you you Geisinger, are tion have with Q. is, patient patient My you there or have been a there question perceive do else, your anything be unable in employed you wife Dr. Toms are impartial juror? companies to be different or the this case a fair same? *20 lenged a initially that verdict Although Schiffino was confused believed questions, against negatively trial did Dr. Toms affect by the court’s she would their, member’s, Dr. Toms em- family that close em- believe she 272a, ployed by employer,-R.R. ployer. Op. same Tr. Ct. The trial court negative a testimony and did not that verdict accepted believe each juror’s further negative against Dr. Toms would have a im- that or she could fair and he remain impact M24 upon employer. financial her partial. jurors’ Id. Given the answers dur- dire, ing trial did not voir court abuse court that After the trial established its to strike declining discretion those from his Nagle not know Dr. Toms did Fletcher, 149 jurors for cause. See A.2d at assistant, Na- employment aas (finding no abuse discretion where that, although he gle perceived indicated judge circumspect “the trial was most compa- working his son to be for the same [challenged ju- ... ascertaining whether Toms, Dr. did not a ny as he believe capable rendering fairly rors] were a a against Dr. Toms verdict would adduced”). verdict on evidence his negative upon financial son’s em- effect ployer. Id. at 309a-12a.25 Finally, accept we decline to the Shinals’ jurors’ against an- accepted
The trial broad assertion that claim a court a swers, finding “Geisinger” employee none of the four chal- for actions commit- that 25. Juror 24. The trial R.R. 272a-73a. lows: R.R. 251a-52a. A. I would A. No. impartial juror ployer. financial A. were a financial A. ations? you perceive tem as regard to enter Q. A. Q. Medical Center. A. No. not a same against Geisinger Q. Q. Q. be Again, Well, Okay, Would Do Would So let me Do employed umbrella, guess. separate company Nagle you your employer? Geisinger Health Plan you negative you regard Geisinger impact upon impact upon it's court verdict regard I you it you be able to perceive was that to wasn’t Geisinger would re-ask in this case perceive I questioned verdict questioned Health the same against unable to sit carry yourself understanding. be a your your be fair. as Health but against System, having question. Dr. given your negative employer? employer? Schiffino as fol- company? it is if and Dr. Toms Toms, it a follows: Health System. as as fair and part Jury Dr. Toms Geisinger negative negative my If impact would No, chose affili- there Sys- em- It’s I merits, trial miss Nagle, R.R. 310a-12a. lieve can be fair. you probably have other fair and sit as a tor? A. through A. A. A. Because we thoughts really your so forth. lar Q. than Q. don't think that cial verdict a carrying Q. Why not? Q. Jury any Nagle to deliberate. Well, (No response.) No, I believe Your son Because negative impact Would I son’s just we do not reach don’t trial court error in juror? chose to error I impartial for cause was harmless because don't believe that employer? alternate believe I you perceive against dispose of newspaper negative it is knowledge don’t have as works at you one n [*] [*] against do so, pertains Nagle on Dr. juror, connections, okay? would be unable would have way financial on Dr. the Shinals’ Toms Geisinger in the particular a Geisinger, was never Toms’ declining or the other. I as any particular new media negative Geisinger I would. be- being community this case if impact argument claim of particu- case called finan- or as other I Doc- you dis- Do on be during employment necessarily has as an ted assistant” to Dr. Toms. R.R. 673a. negative impact upon bearing response all entities question to a seek- Geisinger Appellant’s clarification,27 ing name. Brief See court elaborated against at 26. The cause action as follows: *21 alleged obtain
Toms failure to informed Now, I phrased way it that because it’s encompass any The claim did not consent. your within to province determine a rec- Geisinger by any entity. As misconduct the heard, of you ollection the evidence who recognized, facility court “a trial medical what, people said who those were that control in lacks the over the manner which things said these and whether physician performs duty to obtain the Toms, to they were you assistants Dr. informed consent so to render the facili- know, working under him. IAnd said Valles, vicariously at ty liable.” 805 A.2d any qualified person. There are different 1239. types qualifications person- medical nel. Jury B. Instruction: Informed Con- it to up you And to determine whoev-
sent er you provided remember information The next issue is whether the trial Shinal], to up you to to [Mrs. it’s deter- misapplied court the common law and the mine qualified per- whether Act jury MCARE when it instructed the son working as an assistant to Dr. it provided could consider information Toms.... by “qualified to Mrs. Shinal Dr. Toms’ R.R. 693a-94a. deciding Dr. staff’ Toms ob Mrs. informed consent to tained Shinal’s jury charge Shinals assert the surgery.26 brain aggressive our expounded misstates common law as Valles, initially court The trial instructed the 805 A.2d at conflicts with the that, Act, 1303.504, § Dr. jury assessing whether Toms MCARE and is P.S. consent, unsupported by obtained Mrs. informed the trial Dr. Shinal’s evidence. responds jury charge consider relevant com- Toms that the could information was by “any qualified person acting precedent consistent with municated with Section Toms the Shinals R.R. 775a. was 26. Dr. asserts that The trial court thus aware objection jury charge, their the challenge jury charge, waived to to the re- Shinals' citing generally (addressing merits, 227.1 Pa.RX.P. jected it on the and considered the relief) availability post-trial Pa. preserved following issue trial. See Jones v. 302(b) (requiring exceptions jury R.A.P. to Hosp., 494 Pa. Montefiore charges specific, general). reject to be We (1981) ("Although specific objec- no 923 n.5 argument. response pro- In to Dr. Toms’ charge given, tion made at to the was trial instructing posed jury charge jury to con- appellants’ exception trial court’s refus- provided information Dr. Toms’ sider charge requested al ... was sufficient staff, qualified op- the Shinals filed a brief in put charge appellate us re- before alia, arguing, only position inter view.”). provide Toms could information. The such objection. trial court overruled the Shinals’ inquired: Specifically, le- "Under again timely The Shinals issue in a raised the gal guidelines, [physician assistant] can post-trial By lodging specific objec- motion. patient surgical part informing charge, proposed challenging to the tion given procedure? Meaning, information to a motion, charge post-trial the Shi- their part patient [physician assistant] from a Moreover, preserved objection. nals patient give required for a the information argument acknowledged on 705a. informed consent.” R.R. post-trial motions Shinals "were ob- that the right” jury charge. jecting left See determining medical what Act, autonomy in 40 P.S. MCARE 504 of recog The doctrine Toms ar- allow. respect, Dr. treatment § In this 1303.504. right to be has the duty patient that, physician’s nizes it is the while gues consent, physician his or her informed informed patient’s to obtain the attending proposed all required supply risks benefits is not physician Rather, ac- in order to enable of treatment personally. course information Toms, information decision about it is the to make an informed cording patient to Dr. convey- con person To informed rather the treatment. ensure conveyed, than it, consent. inform sent, duty informed has ing determines benefits, risks, likeli patient about instructions, examining jury Valles, success, and alternatives. hood of *22 is limited to deter scope of review “our (holding that “doctors at 1237 805 A.2d committed trial court mining whether the in patients with” sufficient provide must of or error law of discretion clear abuse a true “give patient to the ‘a un formation Quin of the case.” controlling the outcome operation of derstanding of the the nature Practice, Family v. by Plumsteadville it, the seiiousness of the to performed, 1061, 183, Inc., A.2d 1069 907 589 Pa. involved, the diseasé organs body of the (2006). charge provides An erroneous cured, the sought to be incapacity charge if the as a grounds for new trial a ”) Pat (quoting Duttry v. possible results’ unclear, or ten has a inadequate, is whole 1255, terson, 130, 1258 565 Pa. 771 A.2d a material dency to mislead confuse omitted)). (further citations examination of a 1070. Our issue. Id. at jury the includes a charge to of informed consent devel- trial court’s The doctrine entirety.- charge in Id. of the its common under the oped through review the law law, question of this this “Because is a conducted theory surgery without To the ex plenary.” Yohe, is Id. battery, Court’s review see a Smith v. consent was upon interpretation 167, (1963), turns 94, that our tent 412 194 A.2d 174 Pa. Act, statutory language effective, in the MCARE that, patient’s a consent to be of question also is a law interpretation ie., informed, based ade- must be of de review is novo which our standard information, 423 Gray Grunnagle, v. quate plenary. is Allstate scope of review (1966). and our 144, the Pa. 223 663 Without A.2d Commonwealth, Pa. Ins. 617 Co. consent, physician the is patient’s informed Life (2012). the rules 1080 Under A.3d regardless of procedure, for the liable construction, ignore statutory cannot of we negligent. physician the was whether meaning of a when the plain the statute upon the contractual nature Based unambiguous, statute are words relationship, physician-patient the we 1921(b), disregard § nor can we Pa.C.S. to it “for there be valid consent held that stat plain meaning unambiguous of an the parties clear that both understand must be Al pursue spirit. its ute order Id. undertaking and of the what the nature duty the though undisputed is expected results possible as well as solely imposed consent obtain informed is meeting this might 674. Without be.” Id. at Toms, must resolve upon we minds, understanding is patient’s satisfy wholly or duty Dr. Toms can patient’s right to medi- incomplete, and communications part through staffs It cal violated. self-determination with Mrs. Shinal. physician-patient within this consent informed the doctrine consent The doctrine of informed obligates physi- fore and comes to the bodily integrity protects patient’s of, risks, patient inform operating hospital cians at the cian secure the benefits, alternatives, patient’s and likelihood suc- informed consent. treatment.
cess Valles, duty Pursuant to to obtain a patient’s informed is non-delega- consent Myers, Pa.Super. Bulman v. duty by ble (1983), conducting owed Superior Court the surgery or treatment. Because obtain- rejected argument that the appellant’s ing consent directly informed results charge in declining trial court erred n disclosure, duty solely which lies patient that “a cannot formulate with the physician, hospital cannot be valid, surgical proce consent informed for. physician’s liable failure obtain disclosures of sur dure when the risks As Superior consent. informed Court are made a nurse gery assistant explained, has operating surgeon.” Id. at 1354. surgeon is the Superior hospital [i]t not the Court that “the reasoned education, who has training and ex- Pennsylvania jurispru interest of primary perience necessary to pa- advise each regard is that dence informed consent tient of pro- risks associated with the having patient of all the informed Likewise, posed surgery. by virtue of his facts from material which he can make *23 patient, relationship with the physi- the to intelligent choice as his treat course position cian is in best the to know the Shea, (quoting Id. at 1355 v. ment.” Sauro patient’s history medical to and evaluate 259, Pa.Super. 390 262-63 257 A.2d explain and the risks particular of a (1978)). Similarly, Foflygen Allegheny in v. operation light of particular in the medi- (Pa. Hosp., Super. 723 A.2d General 705 cal history. 1999), Superior the Court that “the held surgical patient’s validity a informed Kelly Hosp., Pa.Super. Methodist depends upon pretreatment 148, 151(1995). consent the 664 A.2d relayed regard to patient, information the reasons, For the same hold we less of whether the are disclosures made physician upon cannot rely subor a quali treating physician or another the to the required dinate disclose information such as a person fied nurse other assis to obtain informed consent. Without direct Id. at tant.” 707. two-way dialogue exchange and a between duty patient, Court has to physician physician This held that the the and the solely to belongs patiént informed consent cannot be confident obtain the com risks, benefits, non-delegable. it physician prehends the and that is the likelihood Valles, Indeed, success, Valles, at we A.2d and alternatives. See in- physician’s duty (providing the to obtain A.2d at 1239 defined informed con requiring phy- consent terms of formed sent flows from discussions between the requi- to provide patients physician patient); Gray, the at sicians with and information, flowing parties id. both (requiring site to understand and procedure patient “from the has the of the discussions each nature and the ex Valles, results). physician.” pected Id. at a with 1239. In Informed consent duty product physician-patient that the to obtain informed of the we held relation solely upon ship. rests healthcare the patient posi consent The vulnerable performing entrusting tion his or provider procedure, a her care medical and well- Therefore, upon hospital. being a a hos- to physician upon phy and not based .the education, duty patient’s training, has no to pital expertise. obtain a sician’s physi- upon physician consent nor to It is to informed ensure that incumbent culti- physician procedure. to that and to sion as patient -with vate present to evidence shall be entitled pa- himself or herself with familiarize procedure of that description understanding expectations. tient’s physi- risks and alternatives that those dele- permit physicians to to the law Were accepted with acting cian accordance information to of critical gate provision practice of medical standards medical autonomy staff, patient it would undermine provide. pa- integrity by depriving the bodily § in a 40 Pa.C.S. 1303.504. engage opportunity- of the tient chosen health care dialogue his or her section, language of this plain Under countenance regime A that would provider. patient’s informed duty to obtain process delegation of the informed consent proce- enumerated for the several consent physi- belongs to the primacy dures, including surgery, would undermine Only by personal- merely re- cian-patient relationship. 504 does physician. Section may the in- duty of consent be ly satisfying quire patient’s disclosure formed; imposes duty specifically is in- truly that consent physician ensure patient physicians provide formed. in- to obtain requisite information and is con- common Our account of the law Nothing plain in the formed consent. lan- Act’s codification sistent with the MCARE suggests that conversa- guage of the Act consent: informed patient others can tions between the (a) Duty physicians.—Except analysis consent control the informed duty owes emergencies, physician’s legal burden. satisfy can the informed consent patient obtain 504(b) Indeed, permits physi- Subsection patient’s authorized patient alleged failure against cian defend conducting the representative prior *24 evi- presenting informed consent obtain following procedures: physician of the information dence (1) surgery, including Performing established medical acting accord with of anesthe- the related administration Again, the focus provide. standards would sia. infor- provision of upon physician’s
[**] [*] mation directly patient, merely receipt of such informa- patient’s (b) procedure.—Consent Description sources.28 tion various given patient is informed if the has been Indeed, forth of his description procedure understanding set Toms’ (a) risks alterna- information to Mrs. obligation provide and the and subsection informed consent reasonably prudent patient to obtain her Shinal and tives that Toms with ours. Dr. testified an informed deci- consistent require to make al., Huycke (citing et LaRae I. between Requiring direct communications patient in- physician and the to establish in Mal- Characteristics Potential Plaintiffs general objec- formed also serves Litigation, consent practice 12 Annals Internal Med. costs of MCAREAct to reduce the (1994)). Thus, tive of the increased communi- quality physi- malpractice insurance. "The patient physician and cation between the rela- cian-patient communications is associated consent, opposed to the tive to informed dissatisfaction, which in general patient with delegation physician’s of communication to litigation risk of turn is correlated to the agent employee, patient satis- enhances Durst, Through Cutting physician.” Daniel A. faction, litigation, the risk of and is reduces Consent Pennsylvania’s Medical Informed legislative goal of reduc- consonant with Interpretation Abolish- Statute: A Reasonable ing malpractice costs. Requirement, Dick. L. Rev. ing Surgical that he views informed consent as “a real remand for a new consistent with this compact surgeon pa- between the opinion. and the tient he she trusts me with their relinquished. Jurisdiction
life[,j I and need know understand serious, that this is things hap- bad could Justices Donohue Dougherty join and end, pen.” To R.R. 530a. Dr. Toms opinion. explained that he does not delegate the joins opinion except Justice Todd obligation patient’s to obtain a informed 11(A)(2) respect with to Part and files (“Truly, consent. Id. at 531a we’re not concurring dissenting opinion. and [physician allowed to have a or a assistant] physician resident procedure [review the 11(A) Mundy joins Justice I Parts it, I patient], I have to do have to opinion. it, it.”). I hear have to know Justice a dissenting opinion Baer files Thus, physician we may hold not which Saylor joins Chief Justice delegate to his or obligation others her Mundy joins Justice Part I of the dissent. provide sufficient information in order TODD, concurring JUSTICE obtain a patient’s informed In- consent. dissenting requires formed consent communi- direct I join Majority Opinion with the physician cation patient, between exception majority’s formulation and back-and-forth, contemplates a face-to-face application, II.A.2, in Part of its rule for exchange, might questions include determining prospective juror patient that the feels the must ground on should be dismissed that his personally patient answer before the feels employment relationship party-de- with a willing informed and becomes to consent. sufficiently fendant is close to warrant a duty patient’s obtain informed view, presumption prejudice. In my solely consent belongs physician. majority’s rule not account for does Foflygen, upon Bulmcm and which the circumstance, herein, implicated where a relied, lower courts and Dr. Toms are Su- prospective juror perceives his relationship perior pre-date Court cases which Valles than it actually closer is. For that rea- and the MCARE Act. To the extent that *25 son, dissent, I in part. permit those decisions a to fulfill through intermediary an duty pro- Specifically, jurors three chal- vide sufficient information pa- to obtain a Woll, lenged Denny Ackley, herein—Linda consent, tient’s informed we overrule Stephen Nagle—testified they W. them. family or close members for worked company”
“same party-defendant, as the However, Dr. Steven Toms.1 or their family actually members for worked enti- reverse Superior We Court’s order ties within Geisinger System’s Health cor- affirming trial court’s porate denial entity structure other than the relief, motion post-trial Shinals’ for and we employed majority which Dr. Toms. The Selection, 4/15/14, (R.R. Jury Yes."); id. at 1. See N.T. company your at 66 [Ackley:] as wife? 246a) ("[Woll:] Yes, (R.R. 310a) big (“[The at It is a umbrella. we 130 you at Court:] Would ....”) id. company regard do work for the your working same at son and Dr. Toms as for (R.R. 251a) (“[The you company? [Nagle:] yes.”); Court:] Do re- the same suppose, I gard being employed by Dr. Toms as Majority Opinion the same at 448-50. judg- impact a acknowledges jurors’ juror perceptions perceptions, but ment, reíar employment rather than only their evaluates actual nevertheless Support in Toms, (Opinion id. at tionship. See employment relationships with Donohue, J.) (opining that a determining that none of the of Reversal ultimately against a judgment sufficiently relationship juror’s close view jurors has a a impact presumption prejudice negatively would party-defendant to warrant a be- mistaken, cause, contrary jurors’ if war- part, employer, in his own even cause). result, “none of As a the- worked rants his dismissal perceptions, Dr, case,, employer.” Majority the instant I consider directly for Toms’ Opinion person holding misappre- at 448. a Woll, Ackley, Nagle hension that held view, prospective juror’s my In where party- view his -the might interests and relationship party-defen with a perceived aligned, interests to be war- defendant’s relationship, it from his actual dant differs ranting On that presumption of bias. guide the' former that should view, my person deriving his question, determining prospec court in whether the (or family from mem- income close whose his and the juror may tive view interests from) employ- an bers derive income thus, and, aligned, party-defendant’s ones’) (or his loved may er well view his Indeed, it is prejudice. presume whether to the em- aligned financial interests as relationship of his juror’s perception inter- ployer’s reputational financial and with, than his actual rather ests, and, thus, protect predisposed with, party-defendant warrants liability or employees professional its from' may that he be biased. See concern our Additionally, although embarrassment. (citing Majority Opinion at United herein, argued upon called de- (C.Q. Burr, 49, 50 25 Fed. Cas. States employ- might issues that on his cide bear 1807) (“Why is it the most D.Va. may reputational er’s financial interests , party of a cannot serve distant relative aiding em- feel he has interest his ... The real reason of the jury? his ployer curry reprobation. favor or avoid is, suspects the relative of that the law rule Woll, suspects Accordingly, his to be I partiality; mind under would hold bias, fairly hearing Ackley, Nagle should been dis- prevent which will testimony fairly deciding grant on the new missed cause and would him.”). regard, that rea- offered to trial on that basis well.2 For may be son, dissent, juror’s part. rather I my focus on a perceptions,, fact, then-judge, is in accord with than BAER, dissenting JUSTICE position in Donohue’s Cordes now-Justicé Medicine, respectfully fervently I but dissent v. Associates Internal 2014), (Pa. Majority’s holding physician’s Super. albeit she stressed *26 Jury Nagle, additionally impact community.” Selec- I on the N.T. respect to dis- 2. With 310a-311a). agree majority’s 4/15/14, (R.R. be- -view that he with the at 130-131 tion' judgment against a Dr. Toms would not lieved negatively Accordingly, Nagle I should would hold that Although employer. impact his Na- as well. have been dismissed on this basis much, gle subsequently he ac- indicated as view, Nevertheless, because, my in Wolfs or knowledged negatively judgment would that a Ackley's empanelment alone is sufficient to knowledge impact employer "the in his via trial, grant express a new I no warrant a community through newspapers the the to as to whether the failure dismiss view so forth.... I think that news media and the Nagle error because he was was harmless gets any Geisinger physician a any time that empaneled juror. an alternate negative there is bound to be some result qualified physician ty staff cannot in (“MCARE aid Reduction Error Act fulfilling duty his to patient’s “Act”) a in- obtain Act” or clearly and unambiguously The simply formed consent. law not does establishes this duty. P.S. Thus, such a support proposition. the Su- § 1303.504(a).1The trial court’s instruction perior properly Court concluded to jury adequately this communicated trial court did abuse its discretion legal principle. N.T., (“A 4/21/2014, at 223 that, instructing in jury determining physician must patient’s obtain a consent provided whether Dr. Toms Mrs. Shinal to perform on a surgery patient. pa- The appropriate with the information to inform informed.”). tient’s consent must also be consent, her could consider rele- I agree also with the Majority that a vant to information communicated Mrs. physician cannot delegate duty. this by any person Shinal qualified acting as an words, other a physician assign cannot Moreover, to assistant Dr. Toms. I while duty to obtain a patient’s informed consent agree with Majority that the trial court to a member of his anyone staff else err by refusing pro- did not four strike and, thus, liability avoid cause, for spective jurors any damaging I disagree that, Rather, breach cases, duty. Majority’s holding duty in some court should utilize a de novo patient’s obtain a appellate an informed consent at- reviewing solely standard when whether a trial to the patient’s physician, taches addressing court erred in request a physician is liable to if patient Rather, strike a for cause. this can patient establish that physician precedent Court’s well-established pro- performed qualifying a procedure on the appellate employ vides courts should patient his without consent. informed an abuse-of-discretion standard when re- point It is at this I analysis that viewing courts in dis- erred part company with the Majority. Based posing requests prospective to strike upon its determination that physician a Superior cause. Because delegate duty his pa- cannot obtain a Court reached the correct in result this consent, tient’s informed Majority matter, I would affirm that judg- court’s leap a logic makes concludes ment. physician prohibited utilizing from his Jury I. Instruction: Informed Consent qualified staff to aid him performing this However, duty. prohibition on Majority correctly the dele- concludes physician gation duty duty patient owes a to his does mean that a patient’s physician precluded utilizing obtain the informed consent to undergo procedures. certain principle qualified This member staff to aid Indeed, indisputable. law is fulfilling physician’s duty Subsection to obtain a 1303.504(a) of the patient’s Medical Care Availabili- informed consent. 1303.504(a) states, full, (2) Administering
1. Subsection
radiation
chemo-
follows:
therapy.
(3)
(a)
Administering
Duty
blood transfusion.
physicians.—Except in emer-
(4)
Inserting
gencies,
surgical
appli-
duty
device or
pa-
owes a
tient to
ance.
obtain the informed consent of the
patient
Administering
experimental
patient's
represen-
or the
an
med-
authorized
ication,
prior
using
conducting
following pro-
experimental
an
device or
tative
using
approved
cedures:
medication
device
*27
(1)Performing
surgery,
including
experimental
in an
the
manner.
§
related administration of
P.S.
anesthesia.
1303.504.
in
nothing
the
there is
succinctly,
Stated
Indeed,
after the MCARE
immediately
precluding a
duty
has the
of this Commonwealth
physician
that a
law
specifies
Act
consent,
qualified
his
utilizing
the
staff
informed
patient’s
physician
to obtain a
if
patient’s
is informed
in
to obtain a
explains
duty
Act
that
to aid
“[c]onsent
description
a
If
staff
given
qualified
has been
patient
the
informed consent.
(a) and
in subsection
in
procedure
aiding physician
forth
negligent
set
somehow
a reason-
that
consent,
risks
alternatives
the
then the
informing
patient’s
require to
ably prudent patient
negligence
if that
remains liable
physician
that pro-
as to
informed decision
make an
patient’s
to
the
results
failure
obtain
the
1303.504(b).Thus,
§
while
cedure.”
P.S.
informed consent.
the
assigns
physicians
Act
to
the MCARE
improperly injects
To
the
hold otherwise
and re-
informed consent
duty to obtain
day-to-day
phy-
tasks of
into the
judiciary
information must
that
quires
certain
ac-
Dr. Toms and fails to
sicians such as
their con-
patients
to
to inform
conveyed
knowledge
reality
practice
of the
the
sent,
not man-
conspicuously
the Act
does
instance,
Majority
For
as the
medicine.
can
themselves
only physicians
that
date
describes,
re-
Toms testified
he
Dr.
to inform
patients
information to
provide
alternatives,
the
Mrs.
with
Shinal
viewed
Instead,
explains
Act
the
their consent.
risks,
versus subtotal
and benefits
total
“if
has
patient
is informed
the
that consent
Af-
at 433-34.
Majority Opinion
resection.
specified
information
given”
been
the
Toms,
Shinal
that visit
Mrs.
ter
with
1303.504(b).2
Legislature
The
Subsection
However,
undergo surgery.
to
decided
not,
have,
require
expressly
could
but did
thereafter,
called and
soon
Mrs. Shinal
provide patients
can
only
physicians
physician assistant
Dr. Shinal’s
asked
con-
regarding informed
information
questions
surgery—ques-
related
Instead,
Legislature crafted the
sent.
the
assistant an-
physician
tions
1303.504(b)in
first sentence
Subsection
Id.
swered.
voice,
leaving
open
passive
thus
holding, the trial
Majority’s
Under
to
consent
informing patient’s
method
to
not
allowed
should
judgment and discretion
professional
assistant
physician
consider whether
duty
charged with
physician
of the
to
that as-
provided answers Mrs. Shinal
informed consent.
obtaining
patient’s
1303.504(b)
Majori-
consent.”
Act
tion and
informed
of MCARE
to obtain
2. Subsection
full,
Opinion
supra, the
ty
454. As described
provides, in
follows:
1303.504(b) does
first sentence of Subsection
(b)
procedure.—Consent
Description of
support this contention.
given
patient has been
informed if the
Moreover,
Majority
cites the second
description
procedure
forth in sub-
of a
set
1303.504(b) to
sentence
Subsection
bolster
of.
(a)
the risks and alternatives
section
provide
position
only physicians can
its
reasonably prudent patient would
informing
patients
aid in
information
decision as to
require to make an informed
Opinion
Majority
at 454-55.
their consent.
physician
procedure.
shall be enti-
The
view,
my
sentence of this subsec-
second
description
present
tled to
evidence
provide
speak to who can
infor-
does not
tion
procedure
risks and alter-
of that
and those
informing
patient
mation to a
to aid
acting in
physician
accor-
natives that a
Rather,
simply
patient's consent.
the sentence
accepted medical standards of
dance with
regard-
physician
present
evidence
provide.
allows
practice would
medical
ing
type
qualified
other
1303.504(b).
of information
Majority
§
contends
40 P.S.
similarly
provide
situated
physicians would
merely require
that "Section 504 does
informed;
patients
inform
consent in defense
spe-
patient’s consent be
that the
failed
obtain
cifically imposed
duty upon physicians to
a claim that
(he
requisite
patient’s informed consent.
provide
patient
informa-
*28
duty
sisted Dr. Toms fulfill his
sidering
obtain
such
Majority
matters.
Opinion at
undergo
Mrs.
consent to
Shinal’s informed
437-42. Agreeing with
Superior
Instead,
seem,
surgery.
Court’s
for fear of
decision in Cordes v. Associates of
Medicine,
incurring liability
failing
(Pa.
Internal
to obtain Mrs.
Super.
Thus, in my addition to conclusion prospective juror’s concludes rela inaccurate, Majority’s holding legally counsel, victim, tionship party, with a I today’s fear that decision will have a far- close, sufficiently witness that trial court reaching, negative impact on the manner presume prejudice should and dismiss the physicians patients. their serve juror for cause. at Citing Id. to Com For legal liability, physicians fear of now Briggs, monwealth v. 608 Pa. every aspect must be involved with of in- (2011), that, Majority opines in this forming patients’ consent, delay- thus bias), (presumption circumstance this ing seriously ill patients physi- access Court “will review the trial court’s deter cians and the critical services mination for an error law.” Id. provide. Courts not impose should such Majority correctly then asserts this unnecessary upon already burdens an “questions Court reviews de novo. law” occupation strained and overwhelmed Id. clearly when the law does not this warrant
judicial interference. Next, addressing a trial court when de- bias, that there is actual termines the Ma- foundation, Based I conclude jority that an appellate concludes court Superior correctly Court deter- should employ an abuse-of-discretion stan- mined that the trial court did abuse its reviewing dard when a trial court’s deci- that, instructing jury discretion regarding sion juror. the dismissal of the determining provided whether Dr. Toms Id. Lastly, Majority posits at 441-42. appropriate Mrs. Shinal with the informa- mutually these two scenarios are not consent, tion to inform her could exclusive, that, times, suggesting ap- relevant consider information communicat- pellate court should utilize some combina- any qualified person ed Mrs. Shinal tion of a de novo and an abuse-of-discre- acting as an assistant to Toms. tion at 442 standard review. See id. Challenge Juror (explaining II. for Cause that “even in the context presumed prejudice, trial court retains addressing Before the trial explore discretion to and assess the rele- by refusing court erred to strike several vant presented”). cause, prospective jurors Majority view, addresses the In my precedent standard review that an this Court’s re- appellate quires employ simplistic straight-for- should when con- a more
460 encompassed within the Court’s to of trial nation was approach appellate review ward review, re- as such a to abuse-of-discretion regarding courts’ decisions whether contemplates of Appel consideration wheth- prospective jurors for cause: view strike misapplied the trial court or er overrode late courts should review such decisions See, e.g., Briggs, Safka, of the Commonwealth v. 141 for an discretion. law. See abuse (Pa. (“[A]n 1239, 2016) 1249 of A.3d abuse (explaining A.3d at 332-33 judg- not of regarding merely discretion is an error “trial court’s decision whether to juror ment, if in the disqualify reaching for is within its but a conclusion cause misapplied, or or the not be law overridden sound and will reversed discretion manifestly of of dis exercised is unrea- palpable judgment in absence abuse the cretion”) Stevens, sonable, preju- or the (citing partiality, v. result Commonwealth (1999)). ilRwill, dice, by the 559 Pa. bias as shown evi- 739 A.2d abused.”) record, dence the discretion instance, Briggs, in the Ma- For (citation omitted). in jority support of its de novo cites review discussion, Here, employ sought this to for Court not de the Shinals did strike jurors alleged four their rela- considering novo standard review when cause due to failing by tionships Geisinger whether the trial court to entities. As the erred prejudice highlights, strike for presume Majority cause examin- closely after jurors signifi- ing relationships, who had a trial allegedly three these the court de- or her the too relationships cant with the victim termined that were Instead, family considering presume jurors members. in the attenuated were stated, that, issue, given jurors’ the “A expressly this Court biased the credible regarding impartiality, they trial court’s decision to assurances of fit to whether disqualify jury. Opinion for is within its on 436. Majority cause serve the that, reaching sound discretion and not be reversed The establishes will record conclusions, in the palpable absence abuse dis- these trial court did not law; moreover, Briggs, To cretion.” at 332-33. override or misapply A.3d Briggs, suggested by in no way suggests extent the record Majority, required partiality, this Court determine court’s decision was result of bias, Thus, if trial court “error of prejudice, committed the court ill-will. examining presume by refusing law” its did abuse discretion prejudice jurors, jurors these that determi- strike for cause.3 granted appeal peremptory 3. This Court also allowance would have stricken with their prop- Superior to consider whether Court challenges. Id. erly determined that the waived their Shinals Court, Superior Like con- Court argument. By challenges" way "exhaustion that the err cluded trial court did not background, Superior brief their refusing jurors for cause. the four strike Court, the Shinals contended that trial Yet, conclusion, reaching Supe- after by refusing court erred to strike cause four unnecessarily rior Shi- Court addressed the argued prospective jurors. The Shinals further argument alleged preju- nals’ that the error prejudiced the error because it them Superior Specifically, them. Court diced peremptory them to chal- forced exhaust their deemed waived Shinals’ "exhaustion lenges. Superior Shinals’ Court Brief at 38- challenges” argument, that, because the Shinals The Shinals insisted had the making preserve claim jurors "failed properly court cause, struck four timely, specific objection perempto- of too few they peremp- would utilized their ries, they request challenges did tory additional to remove other defense- Toms, friendly jurors from the ones.” venire. Shinals Shinal (Pa. 2015). Super. supported also noted the names of several The court
III. Conclusion Superior af- properly
Because Court judgment trial court’s entered
firmed Toms, of Dr. I affirm favor its
judgment. Saylor joins dissenting Justice
Chief this I of
opinion Mundy joins and Justice Part dissenting opinion. BLACKBURN, R. III
John Blackburn,
Donanne M.
h/w GROUP,
KING INVESTMENT
LLC, Appellant
No. EDA 2016
Superior Pennsylvania. Court of
Argued January 24, 2017
Filed April finding by pointing finding of waiver is a its out that court’s waiver classic exam- did not mention court that ple Shinals to the trial Because this dicta. also obiter Court jurors to strike later they wished who trial court did not holds that the err refus- Superior in their named Court brief. Id. cause, ing I to strike the believe the Superior Court's conclusion that commenting simply should refrain from Court by refusing court did err to strike Superior gratuitous finding on the Court’s jurors for cause rendered moot Shinals’ waiver. Thus, challenges” argument. "exhaustion